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This is the brief filed October 30, 2013 in the Illinois Supreme Court by counsel for the plaintiffs in the proposed class action case "Elizabeth M. Keating et al v. City of Chicago." This brief describes how Chicago's Red light Camera program is legally unauthorized, for two main reasons. First, Chicago had no legal authority to enact such a program in 2003 as state law expressly forbade it. Second, a hurriedly enacted 2006 state enabling act did not authorize Chicago's 2003 Ordinance, and is unconstitutional "local" legislation prohibited by the Illinois Constitution of 1970. Copyright 2011-13 Simmons Browder Gianaris Angelides & Barnerd LLC
Citation preview
No. 116054
In the
Supreme Court of Illinois
ELIZABETH KEATING, PAUL W. KETZ, RANDALL D. GUINN, CAMERON W. MALCOLM, JR., CHARLIE PEACOCK, SHIRLEY PEACOCK and JENNIFER P. DIGREGORIO, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, a Municipal Corporation,
Defendant-Appellee.
_____________________________
On Appeal from the Appellate Court of Illinois, First Judicial District, No. 1-11-2559. There Heard on Appeal from the Circuit Court of Cook County, Illinois,
County Department, Chancery Division, No. 10 CH 28652. The Honorable Michael B. Hyman, Judge Presiding.
BRIEF OF PLAINTIFFS-APPELLANTS
DEREK Y. BRANDT PATRICK J. KEATING SIMMONS BROWDER GIANARIS ANGELIDES & BARNERD LLC 230 West Monroe Street Suite 2221 Chicago, Illinois 60606 (312) 759-7518
ANDREA BIERSTEIN HANLY CONROY BIERSTEIN SHERIDAN FISHER & HAYES LLP 112 Madison Avenue New York, New York 10016 (212) 784-6400
MICHAEL T. REAGAN
LAW OFFICES OF MICHAEL T. REAGAN 633 LaSalle Street Suite 409 Ottawa, Illinois 61350 (815) 434-1400
Attorneys for Plaintiffs-Appellants
ORAL ARGUMENT REQUESTED
COUNSEL PRESS · (866) 703-9373 PRINTED ON RECYCLED PAPER
No. 116054
In the
Supreme Court of Illinois
ELIZABETH KEATING, PAUL W. KETZ, RANDALL D. GUINN, CAMERON W. MALCOLM, JR., CHARLIE PEACOCK, SHIRLEY PEACOCK and JENNIFER P. DIGREGORIO, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, a Municipal Corporation,
Defendant-Appellee.
_____________________________
On Appeal from the Appellate Court of Illinois, First Judicial District, No. 1-11-2559. There Heard on Appeal from the Circuit Court of Cook County, Illinois,
County Department, Chancery Division, No. 10 CH 28652. The Honorable Michael B. Hyman, Judge Presiding.
BRIEF OF PLAINTIFFS-APPELLANTS
DEREK Y. BRANDT PATRICK J. KEATING SIMMONS BROWDER GIANARIS ANGELIDES & BARNERD LLC 230 West Monroe Street Suite 2221 Chicago, Illinois 60606 (312) 759-7518
ANDREA BIERSTEIN HANLY CONROY BIERSTEIN SHERIDAN FISHER & HAYES LLP 112 Madison Avenue New York, New York 10016 (212) 784-6400
MICHAEL T. REAGAN
LAW OFFICES OF MICHAEL T. REAGAN 633 LaSalle Street Suite 409 Ottawa, Illinois 61350 (815) 434-1400
Attorneys for Plaintiffs-Appellants
ORAL ARGUMENT REQUESTED
COUNSEL PRESS · (866) 703-9373 PRINTED ON RECYCLED PAPER
i
POINTS AND AUTHORITIES
NATURE OF THE CASE ................................................................................... 1 Article IV, Section 13, Illinois Constitution ............................................................1 ISSUES PRESENTED FOR REVIEW ............................................................... 2 Article VII, Section 6(h) and/or 6(i), Illinois Constitution ..................................... 2 Public Act 94-795 ...................................................................................... 2 Article IV, Section 13, Illinois Constitution ............................................ 2 JURISDICTION .................................................................................................. 2 CONSTITUTIONAL PROVISIONS, STATUTES AND ORDINANCE INVOLVED ......................................................................................................... 3 The Chicago Red Light Camera Ordinance, adopted July 9, 2003 ........ 3 Illinois Constitution, Article IV, Section 13 ............................................ 3 Illinois Constitution, Article VII, Section 6 ............................................. 3 Public Act 94-795 ...................................................................................... 3 The Illinois Vehicle Code, Chapter 11, Sections 207, 207.1, 207.2 and 306 ............................................................................................ 3 The Illinois Municipal Code, Chapter 1, Section 2.1.2 ........................... 3 STATEMENT OF FACTS ................................................................................... 4 Chicago Municipal Code Ch. 9-102, § 010 ............................................... 4 735 ILCS 5/2-615 .................................................................................... 12 STANDARD OF REVIEW ................................................................................ 13 Board of Education of Peoria School Dist. 150 v. Peoria Federation of Support Staff, 2013 IL 114853 .................................................................................... 13
ii
Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) ........................................................................... 13 Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564 (4th Dist. 2011) ................................................... 14 ARGUMENT ..................................................................................................... 14 I. CHICAGO HAD NO LEGAL AUTHORITY TO ENACT ITS RED LIGHT CAMERA ORDINANCE IN 2003 ............................................. 14 Ill. Const. Art. VII, Sec. 6(a) .................................................................. 14 City of Chicago v. StubHub, Inc., (modified on denial of reh’g) 2011 IL 111127 ...................................................................................... 14 Ill. Const. Art. VII, Sec. 6(h), 6(i) ........................................................... 14 A. The General Assembly Has Limited Home Rule Powers and Established a Uniform Statewide System for Enforcing the Rules of the Road ........................................................................ 15 Illinois Vehicle Code, 625 ILCS 5/100 et seq............................... 15 625 ILCS 5/11-306 ....................................................................... 15 625 ILCS 5/20-204 ....................................................................... 15 625 ILCS 5/11-207 ....................................................................... 15 625 ILCS 5/11-208.1 .................................................................... 15 625 ILCS 5/11-208.2 .................................................................... 16 City of Chicago v. Roman, 184 Ill. 2d 505 (1998) ................................................................ 16 65 ILCS 5/1-2.1.2 ......................................................................... 17 B. Chicago’s Ordinance Conflicts With the Provisions of the Vehicle Code and the Municipal Code ..................................................... 17 625 ILCS 5/16-101 ....................................................................... 17
iii
725 ILCS 5/11-3 ........................................................................... 17 210 Ill. 2d Rule 552 ...................................................................... 17 625 ILCS 5/6-204 ......................................................................... 17 65 ILCS 5/11-80-1 ........................................................................ 17 People ex rel. Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515 (1st Dist. 1999) ........................................ 17 Chicago Municipal Code Ch. 9-8, § 020(c)(1)-(2); 9-16-030(c) .... 18 65 ILCS 5/1-2.1.2 ......................................................................... 18 625 ILCS 5/11-306(c)(5) (1997) .................................................... 20 Villegas v. Board of Fire & Police Comm’rs 167 Ill. 2d 108 (1995) ................................................................ 20 C. The Appellate Court’s Decision Conflicts with Numerous
Authorities That Uniformly Conclude That Alternative Enforcement Schemes Like the Ordinance Are Impermissible .............................................................................. 21
Vill. of Park Forest v. Thomason, 145 Ill. App. 3d 327 (1st Dist. 1986) ........................................ 21 Op. Att’y. Gen. No. 92-013, 1-2 (June 22, 1992), available at www.illinoisattorneygeneral.gov/opinions/1992/index.html ...... 21 Mulligan v. Joliet Regional Port Dist., 123 Ill. 2d 303 (1988) ................................................................ 22 People ex rel. Ryan v. Vill. of Hanover Park, 311 Ill. App. 3d 515 (1st Dist. 1999) ........................................ 22 Catom Trucking Inc. v. City of Chicago, 2011 Ill App (1st) 101146 ......................................................... 23 Vill. of Mundelein v. Franco, 317 Ill. App. 3d 512 (2d Dist. 2000) ......................................... 24
iv
II. THE ENABLING ACT CANNOT AUTHORIZE CHICAGO’S PROGRAM BECAUSE IT IS UNCONSTITUTIONAL “LOCAL” LEGISLATION ....................................................................................... 25 People v. Olender, 222 Ill. 2d 123 (2005) ........................................................................... 25 People v. P.H., 145 Ill. 2d 209 (1991) ........................................................................... 25 A. The Plain Language of the Constitution Prohibits the Enabling Act: Truly “Local” Legislation that Could Have Been Made General ......................................................................................... 25 Article IV, Section 13 of the Illinois Constitution (1970) ........... 25 Best v. Taylor Mach. Works, 179 Ill. 2d 367 (1997) ................................................................ 26 People ex rel. East Side Levee and Sanitary Dist. v. Madison County Levee and Sanitary Dist., 54 Ill. 2d 442 (1973) .................................................................. 26 1. The Enabling Act Is a “Local Law” .................................. 26 Best v. Taylor Mach. Works, 179 Ill. 2d 367 (1997) ..................................................... 27 George R. Braden & Rubin G. Cohn, Ill. Constitutional Study Comm’n, The Ill. Constitution: An Annotated & Comparative Analysis 206–07 (Univ. of Ill. Inst. of Gov’t and Pub. Affairs (1969) ..................................................... 27 People v. Wilcox, 237 Ill. 421 (1908) .......................................................... 27 Board of Education of Peoria School Dist. 150 v. Peoria Federation of Support Staff, 2013 IL 114853 ............................................................... 27 2. The Enabling Act Could Easily Have Been Made General .............................................................................. 28
v
Board of Education of Peoria School Dist. 150 v. Peoria Federation of Support Staff, 2013 IL 114853 ............................................................... 28 Cutinello v. Whitley, 161 Ill. 2d 409 (1994) ..................................................... 28 In re Estate of Jolliff, 199 Ill. 2d 510 (2002) ..................................................... 28 Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64 (2002) ....................................................... 29 Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12 (2003) ....................................................... 29 Best v. Taylor Mach. Works, 179 Ill. 2d 367 (1997) ..................................................... 29 B. The Enabling Act Is a Prohibited Local Law Even Under the Two-Prong Test .......................................................................... 30 1. The “Two Prong” Test Goes Beyond Rational Basis ........ 30 In re Pet. of the Village of Vernon Hills, 168 Ill. 2d 117 (1995) ..................................................... 31 In re Belmont Fire Prot. Dist., 111 Ill. 2d 373 (1986) ..................................................... 31 In re Pet. of Vill. of Vernon Hills, 168 Ill. 2d 117 (1995) ...................................................... 33 2. The Enabling Act’s Two-Tiered “Classification” Leads to Patently Arbitrary Results at the Municipal Level ......... 33 In re Pet. of the Village of Vernon Hills, 168 Ill. 2d 117 (1995) ..................................................... 33 Christen v. Cnty. of Winnebago, 34 Ill. 2d 617 (1966) ....................................................... 36
vi
C. The Intent of the Drafters of the 1970 Constitution Was to Ban Local Legislation, Especially Where It Was Made Local Only to Secure the Votes for Passage ...................................................... 36 1. The Historical Problems of Local and Special Legislation and the Attempts of Two Constitutions to Manage Them .............................................................. 37 Robert M. Ireland, The Problem of Local, Private, and Special . Legislation in the Nineteenth-Century United States, 46 AM. J. LEGAL HIST. 271, 271 (2004) ................. 37 ILL. CONST. OF 1870, art. IV, § 22 ..................................... 38 2. The Intent of Both the 1870 and 1970 Constitutions Was to Ban “True” Local Legislation Like the Enabling Act ... 41 Singer, Norman J. & Singer, Shamie J.D., 2 SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 40:8 (7th ed.) (West 2011) ........................................................................ 42 3. This Court Should Not Extend Cutinello, a Decision Which Has Confused Analysis of True Local Legislation ......................................................................... 42 Cutinello v. Whitley, 161 Ill. 2d 409 (1994) ..................................................... 42 Kales, “Special Legislation as Defined in the Illinois Cases” 1 ILL L. REV 63 (1906)............................................ 42 In re Pet. of the Village of Vernon Hills, 168 Ill. 2d 117 (1995) ..................................................... 43 Illinois Bill Drafting Manual, Sec 20-15 (Legislative Reference Bureau, December 2012) ................................. 44 4. Presuming the Unconstitutionality of Facially Local Laws Would Better Effectuate the Drafters’ Intent .................. 44
vii
Board of Education of Peoria School Dist. 150 v. Peoria Federation of Support Staff, 2013 IL 114853 ............................................................... 44 Board of Ed. of City of St. Louis v. Missouri State Board of Ed., 271 S.W.3d 1 (Mo. 2008) ................................................ 45 III. EVEN IF THE ENABLING ACT IS VALID, IT DID NOT AUTHORIZE CHICAGO’S VOID 2003 ORDINANCE ......................... 45 Dean Milk Co. v. City of Aurora, 404 Ill. 331 (1949) ................................................................................ 45 Two Hundred Nine Lake Shore Drive Bldg. Corp. v. City of Chicago, 3 Ill. App. 3d 46 (1971) ........................................................................ 45 People v. Blair, 2013 IL 114122 (2013) ......................................................................... 45 Norton v. Shelby County, 118 U.S. 425 (1886) ............................................................................. 45 People v. Burney, 2011 Ill. App. 4th 100343 (2011) ......................................................... 45 People v. Wright, 194 Ill. 2d 1 (2000) ............................................................................... 46 A. The Enabling Act Applies Prospectively and Cannot Validate a Void Ordinance ............................................................................ 46 5 ILCS 70/4 ........................................................................................... 46 Caveny v. Bower, 207 Ill. 2d 82 (2003) ............................................................................. 46 People ex rel. Larson v. Thompson, 377 Ill. 104 (1941) ................................................................................ 46 Johnson v. Edgar, 176 Ill. 2d 499 (1997) ........................................................................... 46
viii
People ex rel. Shore v. Helmer, 410 Ill. 420 (1951) ................................................................................ 46 Two Hundred Nine Lake Shore Drive Bldg. Corp. v. City of Chicago, 3 Ill. App. 3d 46 (1971) ........................................................................ 47 In re Cnty. Collector of Kane Cnty., 172 Ill. App. 3d 897 (2d Dist. 1988) .................................................... 47 Vill. of River Forest v. Midwest Bank & Trust Co., 12 Ill. App. 3d 136 (1st Dist. 1973) ..................................................... 47 B. The Appellate Court’s Forfeiture Finding was in Error ............ 48 210 Ill. 2d Rule 341 (h)(9) ............................................................ 49 Pajic v. Old Republic Insurance Co., 394 Ill. App. 3d 1041 (1st Dist. 2009) ...................................... 49 Ill. Graphics Co. v Nickum, 159 Ill. 2d 469 (1994) ................................................................ 49 Gallagher Corp. v. Russ, 309 Ill. App. 3d 192 (1st Dist. 1999) ........................................ 49 O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421 (2008) ................................................................ 49 C. The City Has Never Reenacted an Ordinance, So Its Program Remains Unauthorized ................................................................ 49 5 ILCS 70/2 .................................................................................. 50 U.S. Bank Nat. Ass’n v. Clark, 216 Ill. 2d 334 (2005) ................................................................ 50 Village of Park Forest v. Wojciechowski, 29 Ill. 2d 435 (1963) .................................................................. 50 Dean Milk Co. v. City of Aurora, 404 Ill. 331 (1949) ..................................................................... 50 CONCLUSION ........................................................................................... 50
1
NATURE OF THE CASE
This case challenges the legal bases for the defendant City of Chicago’s
(“City” or “Chicago”) 2003 Red Light Camera Ordinance (“Ordinance”) and
the ticketing program it created, which the City has operated continuously
since then. Plaintiffs are vehicle owners or operators who received $100
“Camera Enforcement Violation” notices from the Defendant pursuant to the
Ordinance. The notices, issued by the City’s Department of Revenue, asserted
that Plaintiffs’ vehicles had violated the law requiring vehicles to stop at red
lights, and demanded payments to the City of $100, with escalating
consequences for non-payment. Plaintiffs filed this class action, for
themselves and on behalf of a class of similarly situated motorists and vehicle
owners, alleging that Chicago had no legal authority to enact the Ordinance
or to fine them under its program. The Circuit Court dismissed the action
and the Appellate Court affirmed. This Court should reverse that ruling.
Plaintiffs assert that Chicago lacks the legal authority to issue its
“Camera Enforcement Violation” notices because: (1) Chicago lacked any
authority, home rule or otherwise, to enact such an Ordinance in 2003,
rendering it invalid and void from its inception; (2) the Ordinance remained
invalid after the enactment of Public Act 94-795 (2006), because that statute
–which purported to authorize the municipalities in just eight specifically-
named counties to adopt red light camera ordinances—was a “local law” that
could have been made general, prohibited by Article IV, Section 13 of the
Illinois Constitution; and (3) even if the 2006 legislation is not
2
unconstitutional, it never validated Chicago’s then-existing red light camera
program: to lawfully operate its program, the City needed to re-enact its
Ordinance pursuant to that authority, but has never done so. Because the
2003 Ordinance was ultra vires, both it and the ticketing program it created
are void ab initio.
ISSUES PRESENTED FOR REVIEW
1) Whether Chicago’s 2003 red light camera ordinance and program
were beyond Chicago’s legal authority and void ab initio because the General
Assembly, pursuant to Article VII, Section 6(h) and/or 6(i) of the
Constitution, had properly excluded the City’s home rule authority to enact
alternative traffic laws enforcing the rules of the road, or to administratively
adjudicate such laws.
2) Whether Public Act 94-795, a local law which by its express terms
applied to all municipalities in several named counties, but to no others,
could have been made general and so is barred by Article IV, Section 13 of the
Constitution.
3) Whether, even if Public Act 94-795 was valid, it could have
retroactively authorized Chicago’s red light camera ordinance and program,
where Chicago never re-enacted any post-enabling act ordinance.
JURISDICTION
Supreme Court Rule 315 gives this Court jurisdiction. On August 11,
2011, the Circuit Court of Cook County entered an order granting the
defendant’s motion to dismiss in its entirety and with prejudice. Plaintiffs
3
appealed as of right under Supreme Court Rule 303. The Appellate Court
issued an order affirming the Judgment on January 24, 2013. Appellants
filed a Petition for Rehearing. The Appellate Court requested briefing, but
then denied rehearing on April 8, 2013. Plaintiffs filed their Petition for
Leave to Appeal under Rule 315(a) on May 13, 2013, which this Court
granted on September 25, 2013.
CONSTITUTIONAL PROVISIONS, STATUTES, AND ORDINANCE INVOLVED
This action involves the construction or validity of the following
provisions, which are quoted below or set forth in the Appendix:
The Chicago Red Light Camera Ordinance, adopted July 9, 2003
(creating Chapter 9-102 of the Chicago Municipal Code)
Illinois Constitution, Article IV, Section 13
Illinois Constitution, Article VII, Section 6
Public Act 94-795 (amending 625 ILCS 5/11-208.3 and creating 625
ILCS 5/11-208.6)
The Illinois Vehicle Code, Chapter 11, Sections 207, 208.1, 208.2 and
306
The Illinois Municipal Code, Chapter 1, Section 2.1.2
4
STATEMENT OF FACTS
Chicago’s 2003 Red Light Camera Ordinance
On July 9, 2003, the Chicago City Council adopted an ordinance1 that
created an “Automated Red Light Camera Program” (“Red Light Camera
Program” or the “Program”). (A6)2 This Ordinance expressly incorporated
CMC Chs. 9-8, § 020(c)(1)-(2) (governing red light violations) (A93), and 9-16-
030(c) (A95) (governing right turns on red) but created an alternative means
of enforcing those laws (A84). Before enactment of the Ordinance, Chicago,
like all units of local government in the state, enforced red light violations
exclusively through the issuance, by an arresting officer, of a “Uniform
Citation Notice”; all such violations were adjudicated in the Circuit Court and
convictions reported to the Secretary of State. (A32) The Ordinance created
an entirely new way of enforcing red light violations.
Chicago’s "red light cameras" are photographic recording devices
mounted near street intersections with traffic signals. (A3) Sensors detect
when a motor vehicle has crossed a stop line or otherwise entered an
intersection. If the signal is red, the cameras record a video clip showing the
traffic signal and the vehicle traveling into the intersection. (A3) Chicago’s
1 Chicago, Ill., Municipal Code (“CMC”) Ch. 9-102, § 010, et seq. (A84-92) Current version available at www.amlegal.com. The City’s red light camera ordinance is referred to throughout this brief as the “Ordinance.”
2 Citations to the Record on Appeal (Volumes 1–4) are in the form “CXXX.” Citations to documents in the Appendix, even if also contained in the Record on Appeal, are in the form “AXX.” (See Table of Contents to Appendix)
5
cameras also take a still photograph of the rear license plate of the vehicle.
Under the Ordinance, the owner of a vehicle photographed (as determined by
a license plate registration search), even though not necessarily its driver, is
liable for the infraction and is fined. (A7, A87) The Program began
photographing vehicles, and fining owners, in late 2003. (A1)
The Program uses the enforcement structure previously used for
adjudication of municipal parking tickets. (A6) Chicago issues written “Red
Light Violation” or “Camera Enforcement Violation” notices (“Notices” or
“Tickets”) by mail. (A7) Chicago’s Program is run by its Department of
Revenue (A88), and its Director of Revenue is designated as its Traffic
Compliance Administrator (C476, C505). The Notices command a recipient to
either pay $100.00 or contest the fine, stating, inter alia:
YOU MUST EITHER PAY THE APPLICABLE FINE OR CONTEST THIS VIOLATION . . . Once this date [indicated on notice] has passed you can no longer contest by mail or schedule an in-person hearing . . . . All registered owners appearing on the license plate registration or lessees, if applicable, are legally responsible for this violation.
(C471-72) (capitalization in original).
The City employs several measures to ensure the payment of red light
tickets, and the Amended Complaint contains specific allegations that these
measures have a coercive effect. (A16-18) If a vehicle owner does not pay the
$100 fine within 21 days of the determination of liability, Chicago adds
another $100 penalty to the amount due, without regard to whether an owner
has filed or may still plan to file for administrative review. (C513) The City
6
will also in some circumstances boot or tow vehicles with unpaid red light
tickets (C372); vehicles are not released until the fines are paid. (C376)
Recipients who seek to contest a Ticket must do so at Chicago’s
Department of Administrative Hearings. (C472) No prosecutor participates in
the hearing; Chicago is not required to produce any evidence besides the
Notice itself. (A7) The hearing officers who conduct these hearings do not
have jurisdiction to consider challenges to the City’s authority to enact the
Ordinance, or to the constitutionality of any Illinois statutes. (A18) Chicago’s
Ordinance allows only six specified factual defenses to be raised and
considered at a hearing. (C335–36) The Circuit Court filing fees for a basic
administrative review complaint in Cook County are higher than the ticket
amount, and if such a claim were filed in the Chancery Division to include
the legal challenges here, the filing-related fees would exceed $300.00. (A7)
Payment of such fees deterred Plaintiff Jennifer DiGregorio from individually
appealing her unsuccessful administrative challenge to her red light ticket.
(Tr. 62, R65)3
Chicago keeps all the revenue from its Red Light Camera Program and
deposits it in its general fund. (A23) The City has long claimed that the
presence of cameras will reduce red light violations (C572), but its cameras
3 Citations to the transcript of the July 15, 2011 hearing on the motion to dismiss (contained in Volume 5 of the Record) shall be to both the Transcript page (Tr. XX) and the Record (RXX).
7
continue to record over 700,000 violations per year. (A8) Chicago’s cameras
have not increased intersection safety; they actually increase collisions and
decrease overall safety because the threat of a fine causes some drivers
caught during the yellow light “dilemma zone” to stop abruptly (to avoid the
fine) when the safer option would be to proceed through the intersection. (A3-
4) In contrast, longer yellow light durations and increased “all red” durations
would reduce red light violations and improve intersection safety in Chicago.
(A4) Most of Chicago’s yellow light durations, at 3.0 seconds, are at the bare
minimum of legal requirements. This decreases intersection safety but
increases the number of violations recorded by its cameras. (A4)
Attempts to Authorize Red Light Cameras under State Law
When Chicago enacted its Ordinance, all legal authority indicated that
the Red Light Camera Program was not authorized under state law. (A5-6)
After Chicago adopted its Ordinance, City officials enlisted the aid of
Chicago’s legislative delegation to sponsor bills in the 94th General Assembly
to legalize municipal red light camera programs similar to that existing in
Chicago. (A9) One such bill, House Bill 21 (“HB 21”) authorized the use of red
light cameras statewide. (A10) HB 21, which applied generally to all
municipalities, failed to pass a state Senate vote (25 yeas, 29 nays and one
“present” vote), and was withdrawn on May 20, 2005. (A10)
Months later, a similar bill, House Bill 4835 (“HB 4835”), was
introduced. As first drafted, it too allowed for red light cameras and
administrative adjudication in all municipalities statewide. (A10) Proponents
8
then added, as a late amendment, a new subsection restricting the definition
of automated enforcement violations, proposed as 625 ILCS 5/11-208.6(m)
(“Subsection (m)”). (A38) This amendment provided:
This Section applies only to the Counties of Cook, DuPage, Kane, Lake, Madison, McHenry, St. Clair, and Will and to municipalities located within those counties.
Prior to passage the bill’s Senate sponsor was asked how he picked the eight
named counties; he explained that the bill was limited at the request of
members of both parties in the Transportation Committee who “didn’t want
to have this option in their counties.” (A71, C523, C605) Earlier, in response
to constitutionality concerns raised in committee, the sponsor confirmed that
“some counties were taken out of the bill per their request but the system is
not unconstitutional and is very effective at saving lives.” (Minutes, Senate
Transportation Committee, 03/23/2006, accessed via LEXIS “2005 IL Legis.
Bill Hist. HB 4835”)
After the inclusion of Subsection (m)’s geographic restriction, the new
bill gained six Senate votes (to 31) and narrowly passed on March 29, 2006.
(A10) The bill was signed on May 22, 2006 and took effect as Public Act 94-
795 (“PA 94-795” or the “Enabling Act”). (See A10, A26) The Enabling Act
was described by one lobbyist as “legislative cover” for Chicago’s
unauthorized program. (A9) The Enabling Act operated prospectively only
(“This Act takes effect upon becoming law.” (A49)) and contained no language
purporting to validate or authorize any pre-existing ordinances. It provided
that, going forward:
9
“[a] municipality or county designated in Section 11-208.6 may enact an ordinance providing for an automated traffic law enforcement system to enforce violations of this code or a similar provision of a local ordinance and imposing liability on a registered owner of a vehicle used in such a violation.
(A32-33) 625 ILCS 5/11-208(f) (emphasis added).
Chicago has consistently asserted since 2003 that its Automated Red
Light Camera Program is a valid exercise of its home rule powers and does
not require state authorization. (C572–79, A86) Chicago never repealed or re-
enacted its Ordinance after the effective date of the Enabling Act, and never
adopted a new ordinance like it. (C475–78)
The Effects of the Limited Geographic Restriction in Subsection (m)4
No Illinois county has adopted a camera ordinance; all red light
camera programs in Illinois are operated by municipalities. (A12) Whether a
municipality may adopt such a program is determined solely as a function of
the county in which the municipality happens to sit. The Enabling Act
permits small rural villages like Lenzburg (population 521)5 and Symington
(pop. 87) to enact red light camera ordinances (because these towns are
located in St. Clair County and Will County, respectively), but it does not
4 The Circuit Court did not hold any evidentiary hearings relating to the way the Enabling Act distinguished municipalities, so the following represents only facts alleged the Amended Complaint and raised in briefs and arguments opposing the motion to dismiss. 5 All population references in this brief are from 2010 U.S. Census Figures. (A12, C280)
10
permit some of the State’s largest cities (such as Rockford, Peoria, and
Springfield) or its most pedestrian–dense college towns (like Champaign-
Urbana, Carbondale, Bloomington-Normal, and DeKalb) to do the same.
(A12-14) Red light cameras are not permitted in rapidly-growing Oswego
(pop. 30,355) (which is less than 45 miles from Chicago’s Loop and located
near major commuter routes) because Oswego is located in Kendall County.
The cameras are permitted in the much smaller town of Harvard (pop. 9,447)
which is twenty miles farther from Chicago and is not near any significant
commuter routes, but happens to be located in McHenry County. (A12)
The Enabling Act’s senate sponsor justified the legislative designation:
“we limited it to the more populous counties.” (C777, A71) The eight counties
specifically listed in §208.6(m) have never been the eight most populous (or
densely populated) in Illinois. (A14) Nor were they the eight counties with
the greatest vehicle density. Winnebago County is not among the eight
counties designated in §208.6(m). It has, and had at all relevant times, a
population (295,266) and population density greater than that of either
Madison County (pop. 269,282) or St. Clair County (pop. 270,056) (A12-14),
as well as an almost 50 percent higher vehicle density (number of registered
motor vehicles per square mile) than that of St. Clair County. (Tr. 30, R. 33)
Since passage of the Enabling Act, the General Assembly has
attempted, at least twice, to amend the Vehicle Code to add Winnebago
11
County to the Subsection (m) list, but all geographic expansions of red light
cameras have failed to pass in the Senate. (Tr. 30, R33.)
Plaintiffs’ Red Light Camera Tickets
Plaintiffs Paul Ketz, Randall Guinn, Cameron Malcolm, Jr., Charlie
Peacock, and Jennifer DiGregorio are all registered vehicle owners in Illinois
who received red light Tickets from the City. (A15-18)6 Plaintiff Shirley
Peacock is the wife of Charlie Peacock and was the driver for some of the
Notices issued to him as owner; she jointly paid the penalties on those
Tickets with her husband. (A17) In light of the limited options available to
challenge a red light camera Ticket and the serious consequences of non-
payment, each Plaintiff who was issued a Ticket by Chicago ultimately paid
it. (A16-18) Plaintiff Charlie Peacock contested some of his Notices by mail,
unsuccessfully. (A17) Plaintiff Jennifer DiGregorio challenged her Notice at a
hearing, where, represented by counsel, she attempted to raise challenges to
Chicago’s authority to operate its Program and to the constitutionality of the
Enabling Act, but the hearing officer refused to consider them, and she was
adjudged liable. (A18)
Procedural History
The original class action Complaint in this case was filed on July 2,
2010, against, inter alia, Chicago and its red light camera vendor, Redflex
6 The Circuit Court found additional reasons why plaintiff Elizabeth Keating lacked standing, which are not at issue before this Court as she has not appealed the decision adverse to her.
12
Traffic Systems. (C7–68) The pleading alleged that Chicago lacked legal
authority to implement its Program in 2003, and recited facts establishing
the constitutional infirmities of the Enabling Act. (C7–68) RedFlex removed
the case to the U.S. District Court, which remanded it. (C96–213) By
agreement of the parties, Chicago did not respond to the initial complaint and
plaintiffs filed an Amended Complaint on April 11, 2011, listing Chicago as
the sole Defendant. (C269-283, A1-25)
Chicago filed a combined Motion to Dismiss under 735 ILCS 5/2-615
and 2-619 (“Motion”). (C322–431) The Circuit Court granted the Motion with
prejudice, concluding that: (1) PA 94-795 was not unconstitutional local
legislation, and once it took effect Chicago’s “red light camera program was
indisputably authorized.” (C768); (2) Plaintiffs who received red light camera
Notices after May 22, 2006 lacked the standing to challenge an Ordinance
under which they were ticketed (C769); and (3) all Plaintiffs’ claims were
barred as a matter of law by the shield of a “voluntary payment” doctrine.7
(C789)
The Appellate Court’s Rule 23 Order affirmed the judgment, but on
very different grounds. It found that all vehicle owners ticketed had standing
to challenge Chicago’s Ordinance (A56 ¶¶17-19), and that the coercive
7 The circuit court also rejected Plaintiffs’ other challenges to Public Act 94-795. Plaintiffs do not seek review of the portions of the court’s order addressing those additional challenges.
13
measures Chicago takes to ensure payment of the Tickets vitiated the City’s
attempts to interpose a “voluntary payment” defense. (A22-33 ¶¶ 61-78) The
Appellate Court also concluded that the 2003 Ordinance was always
authorized, as a valid exercise of Chicago’s “home rule” powers.
In light of its home rule finding, the Appellate Court was not required,
but nonetheless went on to determine, that (1) the Enabling Act was not
unconstitutional (A22 ¶59); and (2) plaintiffs “waived” their argument that
due to the City’s failure to reenact its Ordinance, even a valid Enabling Act
could not authorize the City’s Program where the Ordinance was void ab
initio for want of authority to enact it. (A7-8 ¶20)8
STANDARD OF REVIEW
This Court reviews de novo both a determination as to the
constitutionality of a state statute, and a circuit court ruling on a motion to
dismiss. Board of Education of Peoria School Dist. 150 v. Peoria Federation
of Support Staff, 2013 IL 114853 ¶41. This Court should accept as true all
well-pleaded facts in the Amended Complaint and reasonable inferences
therefrom; no cause of action should be dismissed unless it is clearly apparent
that no set of facts can be proved that would entitle plaintiffs to recovery.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). De novo review
8 Although the Court of Appeals used the term “waived,” it is clear that what the court meant was “forfeited.” See infra at Sec. III.
14
gives no deference to the conclusions or specific rationales of the court(s)
below. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 595 (4th Dist. 2011).
ARGUMENT
I. CHICAGO HAD NO LEGAL AUTHORITY TO ENACT ITS RED LIGHT
CAMERA ORDINANCE IN 2003
Article VII of the Constitution grants municipalities with populations
over 25,000 certain “home rule” powers, but only with respect to their own
government and affairs, not the affairs of the State as a whole. ILL. CONST.
Art. VII, Sec. 6(a); City of Chicago v. StubHub, Inc., (modified on denial of
reh’g) 2011 IL 111127 ¶ 19. What the Constitution gives with one hand, it
limits with the other, by conferring on the General Assembly the power to
declare state authority to be exclusive, and to limit the concurrent authority
of home rule units. ILL. CONST. Art. VII, Sec. 6(h), 6(i). (A97) The question
whether a claimed power is within the scope of home rule is for the courts.
Ampersand, Inc. v. Finley, 61 Ill. 2d 537, 540 (1975); see also StubHub, ¶ 19.
In this case, the Ordinance was ultra vires. Such a law was beyond the
scope of Chicago’s home rule powers because, in both the Illinois Vehicle Code
and the Illinois Municipal Code, the General Assembly expressly required
uniform enforcement of traffic rules across the state and specifically
precluded all local authorities from adopting enforcement schemes other than
the state-wide uniform system.
15
A. The General Assembly Has Limited Home Rule Powers and Established a Uniform Statewide System for Enforcing the Rules of the Road
Few things are expressed more clearly in Illinois law than that traffic
regulations governing the movement of vehicles must be applied and enforced
uniformly throughout the state. Chapter 11 of the Vehicle Code, 625 ILCS
5/100 et seq., is entitled “RULES OF THE ROAD” (“Rules”) and contains the
basic traffic laws included in driver’s education curricula for decades,
including the state law requiring stops at steady red lights and, in some
circumstances, allowing right turns on red. 625 ILCS 5/11-306, (A102)
Municipalities are allowed to adopt the Vehicle Code, in whole or in part, into
their own ordinances, see 625 ILCS 5/20-204, but may not enact ordinances
which conflict with, or set up alternate enforcement of, these Rules. Chapter
11 contains not one but two uniformity provisions. Section 207 provides:
The provisions of this Chapter shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance rule or regulation in conflict with the provisions of this Chapter unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Chapter, but such regulations shall not be effective until signs giving reasonable notice thereof are posted.
625 ILCS 5/11-207 (emphasis added). In addition, Section 208.1 provides:
The provisions of this Chapter of this Act, as amended, and the rules and regulations promulgated thereunder by any State Officer, Office, Agency, Department or Commission, shall be applicable and uniformly applied and enforced throughout this State, in all other political subdivisions and in all units of local government.
16
625 ILCS 5/11-208.1 (emphasis added).
In case these uniformity provisions were not clear enough, Chapter 11
also contains an explicit limitation on the power of home rule units:
The provisions of this Chapter of this Act limit the authority of home rule units to adopt local police regulations inconsistent herewith except pursuant to Sections 11-208, 11-209, 11-1005.1, 11-1412.1, and 11-1412.2 of this Chapter of this Act.
625 ILCS 5/11-208.2.9 This Court has previously held out this very language
as an example of a proper limitation on home rule powers: “When the
General Assembly intends to preempt or exclude home rule units from
exercising power over a matter, that body knows how to do so.” City of
Chicago v. Roman, 184 Ill. 2d 505, 517-18 (1998) (citing Section 208.2, supra,
as an example).
Illinois’ Municipal Code reinforces the uniformity required by its
Vehicle Code. It allows home rule units to adopt their own systems to
adjudicate ordinance violations, but specifically instructs that such systems
may not be used to enforce ordinances regulating vehicular movement:
A “system of administrative adjudication” means the adjudication of any violation of a municipal ordinance, except for (i) proceedings not within the statutory or home rule authority of municipalities; and (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code.
9 When Chicago adopted its Ordinance in July of 2003, none of the enumerated sections allowed for anything like red light camera ordinances.
17
65 ILCS 5/1-2.1.2 (emphasis added). Thus, even as the Vehicle Code and the
Municipal Code acknowledge that municipalities may enact their own
ordinances that track state law, each also clearly requires that local bodies
enforce those rules, whether found in the state statute or in a local ordinance,
in the uniform statewide manner.10 All of these laws were in effect when the
City decided to implement an alternative enforcement scheme for its Red
Light Camera Program in July 2003.
B. Chicago’s Ordinance Conflicts With the Provisions of the Vehicle Code and the Municipal Code
The City’s Ordinance runs afoul of the requirements of uniformity and
the limitations on home rule powers set forth in the Vehicle Code and the
Municipal Code. Under the Vehicle Code, red light violations are enforced by
police officers. 625 ILCS 5/16-101. Traffic prosecutions are initiated by the
preparation of a Uniform Citation, 725 ILCS 5/11-3, which is required to be
transmitted to and adjudicated in the Circuit Courts. 210 Ill. 2d Rule 552.
Convictions of traffic offenses are to be reported to the Secretary of State,
who can suspend the licenses of repeat offenders. 625 ILCS 5/6-204; see also
People ex rel. Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515, 526-27
(1st Dist. 1999)(discussing uniform system).
10 The Municipal Code also states that “All provisions of this Code relating to the [municipal] control of streets, alleys, sidewalks and all other public ways are subject to the provisions of ‘The Illinois Vehicle Code’ as now and hereafter amended...” 65 ILCS 5/11-80-1.
18
Under Chicago’s camera Program, by contrast, red light violations are
enforced by automated cameras. No police officer need witness the violation;
no Uniform Citation is issued, and offenses are adjudicated administratively,
rather than in the Circuit Court. The City does not report convictions under
the Ordinance to the Secretary of State.
Despite these different enforcement mechanisms, violations of the
Ordinance are, without question, triggered by the same conduct (a vehicle
entering an intersection against a red light) that is regulated by both the
state Rules and by Chicago’s uniform red-light ordinance, see CMC Ch. 9-8, §
020(c)(1)-(2); 9-16-030(c). Thus, rules proscribing identical conduct are
enforced under the Ordinance differently than under the state Vehicle Code,
in plain violation of the uniformity provisions discussed above.
The key component of this alternate enforcement scheme also violates
the Municipal Code, which expressly forbade—and continues to forbid—
administrative adjudication for any offense involving “a traffic regulation
governing the movement of vehicles.” 65 ILCS 5/1-2.1.2. This Court should
not accept the conclusion of the Appellate Court that detection by a camera
captures “a moment in time” and so cannot be a “moving violation.” (A64
¶¶39-40) A regulation that requires a vehicle to stop under prescribed
circumstances (and penalizes the failure to do so) presupposes that the
vehicle is moving, penalizes its failure to stop moving, and self-evidently
regulates the movement of such a vehicle. Indeed, if the vehicle were not
19
moving, it could not enter an intersection against a red signal. That the
Appellate Court believed that the enforcement mechanism only records a
moment in time does not alter that the rule being enforced can only apply to
a vehicle that is moving in the first place. It defies logic to suggest that
Chicago may enforce red-light violations through administrative procedures
so long as its cameras only record still images—especially where, as here, the
City’s Program also records a video clip of the alleged infraction. (A3)
Nor was it necessary for the General Assembly to specifically prohibit
municipalities from adopting red-light camera ordinances, as the Appellate
Court below apparently believed. Its Order asserted that:
[p]rior to the 2006 enabling provision in section 11-208.6 for the red light camera automated system, there was no state legislation regarding the use of red light cameras, much less a specific prohibition against home rule authorities enacting such ordinances. Only with the enactment of red light camera legislation was a limit placed on home rule authorities in connection with automated traffic law enforcement systems.
(A14 ¶37) (emphasis added). The central premise of that assertion is
incorrect, for two reasons. First, as noted above, the Ordinance employs the
two features (non-uniform enforcement of state Rules and administrative
enforcement of regulations governing the movement of vehicles) that were
expressly, if generally, proscribed by the General Assembly. The legislature
was not required to think of every possible traffic law that could violate these
principles and prohibit each specifically. Second, the factual predicate for the
Appellate Court’s reasoning is mistaken: at the time Chicago enacted its
Ordinance, the state legislature specifically authorized Illinois municipalities
20
with a population over 1 million (i.e., Chicago) to use cameras in the
enforcement of red light violations, but only in certain, limited conditions,
and not in connection with administrative adjudication. From 1997 until its
repeal by the Enabling Act (A48), the state law governing red light cameras
only allowed:
A municipality with a population of 1,000,000 or more may enact an ordinance that provides for the use of an automated red light enforcement system to enforce violations of this subsection (c) that result in or involve a motor vehicle accident, leaving the scene of a motor vehicle accident, or reckless driving that results in bodily injury. This paragraph 5 is subject to prosecutorial discretion that is consistent with applicable law.
625 ILCS 5/11-306(c)(5) (emphasis added), repealed May 22, 2006 (A100)
In Illinois the rule of expressio unis est exclusio alterius assists courts
in ascertaining legislative intent. Villegas v. Board of Fire & Police Comm’rs
167 Ill. 2d 108 (1995). Considering the pervasive uniformity requirements in
Chapter 11, the legislature’s narrow, and express, grant of authority to use
red light cameras beginning in 1997 can only mean that it intended at that
time to exclude home rule authority for any broader use of red light cameras
by large municipalities.
Moreover, if the legislature had believed that home rule municipalities
already had the authority to employ camera enforcement of red-light
violations, it would have had little reason to pass the Enabling Act, much less
to limit that law’s applicability to only eight counties. Clearly, the legislators
who “did not want this option” in their districts and who voted down the
21
original (general) red-light camera bill must have believed that, absent the
new legislation, there was no such authority.
C. The Appellate Court’s Decision Conflicts With Numerous Authorities That Uniformly Conclude That Alternative Enforcement Schemes Like The Ordinance Are Impermissible
The Appellate Court’s Order is at odds with the consistent line of
authorities concerning alternative traffic enforcement and the limits of home
rule. Indeed, Chicago was not the first municipality to attempt an
alternative traffic ordinance, and by 2003 there was ample precedent that
should have alerted Chicago that it lacked the power to adopt the Ordinance.
In 1986, the Appellate Court held that a home rule municipality lacked
the power to enact a drunk-driving ordinance that provided for different
penalties from those prescribed in the Vehicle Code, and specifically cited the
Code’s uniformity provision in support of its ruling. Vill. of Park Forest v.
Thomason, 145 Ill. App. 3d 327, 330–32 (1st Dist. 1986).
In 1992, the Illinois Attorney General issued a formal Opinion finding
that municipal ordinances allowing for "alternative" civil enforcement of
traffic violations outside of the Vehicle Code are “void and unenforceable . . .
conflict with the comprehensive traffic regulation and enforcement policy set
forth in the Illinois Vehicle Code and the Supreme Court Rules on bail in
traffic cases, and deny due process of law.” Op. Att’y. Gen. No. 92-013, 1-2
(June 22, 1992), available at www.illinoisattorneygeneral.gov/opinions/
1992/index.html. (C410–14) Formal opinions of the Attorney General are
22
entitled to considerable weight in resolving questions regarding the
constitutionality of laws in Illinois. See Mulligan v. Joliet Regional Port Dist.,
123 Ill. 2d 303, 317-18 (1988).
In 1999, the Secretary of State filed a quo warranto action challenging
the authority of several municipalities, including home rule units, to enact
ordinances allowing them to issue their own violation notices and issue civil
fines to motorists for violating traffic laws, without issuing a Uniform Traffic
Citation and without reporting the offense to the Secretary of State as
required by the Vehicle Code. People ex rel. Ryan v. Vill. of Hanover Park, 311
Ill. App. 3d 515 (1st Dist. 1999). The Appellate Court concluded that such
ordinances conflicted with the Vehicle Code and upset its uniform design. The
published opinion established that the alternative enforcement of various
traffic laws, by home rule units, was precluded and, indeed, was exactly what
the legislature sought to prevent in the uniformity provisions of Chapter 11.
In Hanover Park, the Appellate Court observed that the Vehicle Code
is “devoid of any authorization for the programs that administratively
adjudicate violations of chapter 11” and found that “to be valid, the
alternative traffic programs must comport with the provisions mandating
uniformity and consistency. . . .” 311 Ill. App. 3d at 527. The court found
that the ordinances improperly provided for an enforcement scheme different
from the one contemplated by the Vehicle Code and its attendant provisions.
23
Id. The specific deviations were strikingly similar to those at issue here. As
the court explained:
In lieu of a uniform citation being prepared after a police officer arrests an offender, under defendants' ordinances, the offender is given an offer to settle the matter. This gives the offender an opportunity to circumvent the potential consequences of committing the offense, namely, a chance to avoid an adjudication in the circuit court, a finding of guilty, and a guilty finding being reported to the Secretary of State. * * * As such, it is apparent that these programs fail to implement the Code as mandated under sections 11-207, 11-208.1, and 11-208.2. Consequently, the enforcement of the ordinances cannot be said to be uniform with enforcement of chapter 11 in areas of the state without these programs. 625 ILCS 5/11-207, 11-208.1, 11-208.2 (West 1998). Moreover, it follows that the lack of uniformity makes these ordinances inconsistent with the policy of uniformity expressed in chapter 11 of the Code.
Id. at 527.
The Hanover Park opinion explains that non-uniform enforcement of
traffic laws is itself an inconsistency prohibited by the Vehicle Code. Id.
Indeed, the Appellate Court stated, “all municipalities are limited to enacting
traffic ordinances that are consistent with the provisions of chapter 11 of the
Code and that do not upset the uniform enforcement of those provisions
throughout the state.” Id. at 525 (emphasis added).
The Appellate Court’s decision below plainly conflicts with both its
decision in Hanover Park, and the more recent decision in Catom Trucking
Inc. v. City of Chicago, 2011 Ill App (1st) 101146, which, as here, involved a
challenge to an ordinance in Chapter 9 of Chicago’s municipal code. Like the
red light Ordinance, that ordinance: (1) prohibited on a municipal level
conduct already prohibited in chapter 11 of the Vehicle Code (the operation of
24
overweight trucks); (2) contained a method of violation detection different
than that in uniform citations (use of non-police city employees to pull over
and weigh trucks); and (3) was enforced at the municipal level, routing
payments through the Department of Revenue, and adjudications through
the Department of Administrative Hearings. Catom Trucking, ¶¶13-14. For
purposes of analysis under the Illinois Municipal Code, Chicago’s red light
Ordinance and the ordinance at issue in Catom Trucking are
indistinguishable. As discussed above, the Appellate Court concluded that
the red light Ordinance captured but “a moment in time,” while in Catom
Trucking, the same court found the City was without jurisdiction to
administratively enforce truck weight restrictions that were “traffic
regulations governing the movement of vehicles.” Catom Trucking, ¶18.
Finally, the Appellate Court, Second District, has also recognized that
municipal power does not extend to alternative enforcement of the rules of
the road contained in Chapter 11 of the Vehicle Code. See Vill. of Mundelein
v. Franco, 317 Ill. App. 3d 512, 519 (2d Dist. 2000). The decision below in this
case is thus in conflict with consistent precedent that home rule units may
not adopt alternative traffic enforcement schemes and may not use
administrative enforcement procedures for regulations that govern the
movement of vehicles. This Court should bring this case into harmony with
those precedents and clarify the limits of home rule authority to vary the
enforcement of traffic regulations. The Court should reverse the Appellate
25
Court’s holding that Chicago had home rule authority to adopt the
Ordinance.
Because Chicago lacked authority to operate its Program in 2003, this
Court should next consider whether the Enabling Act conferred that missing
authority when it was enacted in 2006. As discussed below, it did not,
because the Enabling Act itself is unconstitutional.
II. THE ENABLING ACT CANNOT AUTHORIZE CHICAGO’S PROGRAM
BECAUSE IT IS UNCONSTITUTIONAL “LOCAL” LEGISLATION
Illinois courts are duty-bound to strike down legislation that violates
the constitution. People v. Olender, 222 Ill. 2d 123, 131 (2005). While statutes
and ordinances may be entitled to a presumption of constitutionality, this
Court has recognized that “it is equally our duty to declare invalid an
unconstitutional statute, no matter how desirable or beneficial the attempted
legislation may be.” People v. P.H., 145 Ill. 2d 209, 221 (1991).
A. The Plain Language of the Constitution Prohibits the Enabling Act: Truly “Local” Legislation that Could Have Been Made General
Article IV, Section 13 of the Illinois Constitution (1970) states:
The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.
This clause (“Section 13”) is wholly unique: it specifically bans the legislature
from passing certain classes of laws, it is the only section of the Constitution
that expressly provides for judicial review of legislation, and it details the
26
exact test the courts must apply to challenged laws. See Best v. Taylor Mach.
Works, 179 Ill. 2d 367, 391–93 (1997).
Shortly after the 1970 Constitution took effect, this Court confirmed
that applying the Article 13 test is just as straightforward as it seems:
As we recently pointed out in Bridgewater v. Hotz (1972), 51 Ill.2d 103, 281 N.E.2d 317, and in Grace v. Howlett, (1972), 51 Ill.2d 478, 283 N.E.2d 474, the criteria developed under the earlier constitution for determining whether a law is local or special are still valid, but the deference previously accorded the legislative judgment whether a general law could be made applicable has been largely eliminated by the addition in section 13 of the provision that this ‘shall be a matter for judicial determination.’ There is, in our judgment, no doubt that this 1972 act is special legislation. As we said in Grace v. Howlett, ‘The constitutional test under section 13 of article IV is whether a general law can be made applicable * * *.’ * * * It is our opinion that a general law could have been made applicable, and that Public Act 77-2819 therefore violates the constitution's prohibition against special legislation.
People ex rel. East Side Levee and Sanitary Dist. v. Madison County Levee
and Sanitary Dist., 54 Ill. 2d 442, 447 (1973) (emphasis added), cited with
approval in Peoria School Dist. 150, supra at ¶¶ 50-54. The Enabling Act, a
local law that could have been made general, is prohibited by Section 13: if
PA 94-795 does not violate this provision, it is hard to see when Section 13
would ever apply.
1. The Enabling Act Is a “Local Law”
There can be no question that the Enabling Act is a “local law;”
Chicago has never seriously disputed that. Although what is a “special” law
may at times present the courts with a difficult question, what is a “local” law
does not: “[a] local law is one which applies only to the government of a
27
portion of the territory of the state.’” Best, 179 Ill. 2d. at 392 (quoting George
R. Braden & Rubin G. Cohn, Ill. Constitutional Study Comm’n, The Ill.
Constitution: An Annotated & Comparative Analysis 206–07 (Univ. of Ill.
Inst. of Gov’t and Pub. Affairs (1969))).11 See also People v. Wilcox, 237 Ill.
421, 424 (1908) (“The word ‘local’ signifies belonging to or confined to a
particular place. When applied to legislation, it signifies such legislation as
relates to only a portion of the territory of a state”) (construing 1870
Constitution).
Few cases address these true “local” laws, but this Court recently
considered the Article 13 problems inherent in statutes that contain
restrictions that “close . . . the class as of the statute’s effective date.” Peoria
School Dist. 150, 2013 IL 114853 at ¶54. True local laws always present this
“closed class” problem, which is why they are so exceedingly rare. Here, the
Enabling Act will always apply only to municipalities in the eight named
counties, no matter how large, congested (or lawless) other municipalities
are, or may become. Analytically, the designation of specific local
government units in Subsection (m) of the Enabling Act operates in the same
11 This treatise, hereafter “Braden & Cohn,” was commissioned by the Illinois Constitutional Study Commission as part of the preparations for the 1970 Constitutional Convention. It contains detailed analysis of, inter alia, judicial decisions under the various provisions of the 1870 Constitution, coupled with recommendations for the delegates to the forthcoming 1970 Constitutional Convention. Many of the recommendations of the authors were adopted in their entirety in the 1970 Constitution.
28
manner as the date restriction in Peoria School Dist. 150—it prevents the law
from applying to new entities as those entities come to meet whatever criteria
(if any) originally informed the law’s classification.
2. The Enabling Act Could Easily Have Been Made General
As this Court articulated in Peoria School Dist. 150 and in East Side
Levee, once it is determined that a law is truly “special” or “local,” the court
then needs only to determine whether that law could have been made
“general.” See Peoria School Dist. 150, supra at ¶ 60. A law is constitutional,
and “general” “not because it embraces all of the governed, but because it
may, from its terms, embrace all who occupy a like position to those
included.” Cutinello v. Whitley, 161 Ill. 2d 409, 432–33 (1994) (Freeman, J.,
dissenting) (quoting Bridgewater, 51 Ill. 2d at 111 (1972)); see also In re
Estate of Jolliff, 199 Ill. 2d 510, 518 (2002). With its geographic limitations,
the Enabling Act is not general: it treats similarly situated municipalities
very differently – and treats some very different municipalities the same.
The history, the structure, and the policy assumptions that underlie
the Enabling Act all demonstrate that it could easily have been made
general. First, there is no dispute that the both Enabling Act, and its
predecessor (HB 21) were originally drafted as bills of general application.
Although it has been this Court’s jurisprudence that the legislature need not
provide a reason for why it made a certain legislative classification, it is also
true that “[w]here some rationale is offered, however, we [the Supreme
Court] are not required to ignore it.” Cutinello, 161 Ill. 2d at 428 (Freeman,
29
J., dissenting); see also Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d
64, 86-87 (2002) (looking to legislative history in “special” legislation
challenge of statute when “[t]he reason for the classification is not apparent
from the face of the statute.”); Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d
12, 25-26 (2003) (same). Here, remarkably, legislative history actually
establishes that the Enabling Act is local because a general law was not
politically palatable: state senators told the bill’s sponsor that they did not
want red light cameras in their counties, he removed those counties from the
scope of the bill, and then it narrowly passed. The inability to pass a general
law does not then permit the legislature to make a local or special law, and
this Court “cannot rule that the legislature is free to enact special legislation
simply because ‘reform may take one step at a time.’” Best, 179 Ill. 2d at 398
(citing Grace, 51 Ill.2d at 487).
Second, the structure of the Enabling Act shows that it easily could
have been made a law of general application. Only one sentence (now
codified at §208.6(m)), not in earlier versions of the bill, makes the Enabling
Act “local.” Removing Subsection (m) restores the law to general applicability.
Finally, the public policy problem that red light cameras ostensibly
seek to remedy—the running of red lights—is not one that requires a facially
“local” law. This Court recognizes that there are some laws, needed to
address “a problem unique to a particular geographical area and/or one
involving peculiar, multifaceted economic considerations,” that cannot be
30
made general and so will pass constitutional muster under Section 13. Peoria
School Dist. 150 at ¶ 57. The Enabling Act, though, is not one of them.
Traffic lights are found everywhere in this State, and red light violations are
too (as are, for that matter, cash-strapped municipalities that would benefit
from camera revenue). Chicago has not to date articulated any reason why
what it considers to be the “safety” (and what are the undoubted financial)
benefits of red light camera ordinances should not be available to every
county and every municipality in the state. It would be hard-pressed to do so
because PA 94-795 is only an enabling act: it imposes no costs or
responsibilities on any county or municipality that simply chooses not to
enact a compliant red light camera ordinance.
B. The Enabling Act Is a Prohibited Local Law Even Under the Two-Prong Test
Although application of the simple test described above should be
sufficient to strike down the Enabling Act, this Court has sometimes applied
a different two-prong test. But even under that test, the Enabling Act is
unconstitutional.
1. The “Two Prong” Test Goes Beyond Rational Basis
Chicago has consistently urged that the Enabling Act must be
analyzed under the same old “deferential rational basis test” that would
apply to any legislative act, as if the ban on local legislation did not exist.
But, as discussed above, the Court owes the legislature no deference on the
question of whether a law could be made general. Further, because the
31
Enabling Act bases its designation on a territorial difference, this Court’s
precedents call for the application of the “two prong” test. In re Pet. of the
Village of Vernon Hills, 168 Ill. 2d 117, 127 (1995). The Court explains:
This court has further defined the rational basis test when reviewing legislative classifications based upon population or territorial differences. For at least half a century, this court has held that such a classification will survive a special legislation challenge only (1) where founded upon a rational difference of situation or condition existing in the persons or objects upon which the classification rests, and (2) where there is a rational and proper basis for the classification in view of the objects and purposes to be accomplished. (citations) Although this test has remained the same for more than 50 years, this court in In re Belmont Fire Protection District (1986), 111 Ill. 2d 373, 380, 95 Ill. Dec. 521, 489 N.E.2d 1385, first labeled it the "two-prong test."
Id. at 123. The courts below, however, misapplied this test and reached the
erroneous conclusion that the legislative “classification” at issue could pass
muster under Section 13. It cannot.
The Enabling Act has two sets of legislative objects—it empowers both
counties and municipalities to enact red light camera ordinances—but only a
single tier of classification, made at the county level. This Court, applying
the two-prong test, has twice stricken similar statutes. In In re Belmont Fire
Prot. Dist., 111 Ill. 2d 373 (1986), this Court invalidated a statute that gave
to any municipality in a county defined by a population range (but to no other
municipalities) the authority to eliminate fire protection districts that
covered more than one municipality. In striking down the law, this Court
explained:
32
We can perceive of no rational reason why a municipality served by multiple fire protection districts in a county with a population between 600,000 and 1 million can be said to differ from a municipality which is served by multiple fire protection districts in a county with less than 600,000 or more than 1 million inhabitants. If a real need exists to eliminate the alleged disadvantages and dangers of multiple fire protection districts serving one municipality, then the same need to remedy this evil also exists in other counties as well, regardless of the level of the population of the county.
111 Ill. 2d 373, 382 (1986) (emphasis added). As here, the statute at issue in
In re Belmont was an enabling act; it imposed no burden on any municipality
but, rather, provided a tool that certain “favored” municipalities could
implement to address a perceived problem. When municipalities are the
object of the law (as in the Enabling Act) valid legislative classifications must
also be made at that level:
[I]t would rationally follow that the statute in question should be based on either the population, urbanization, or density of the municipality involved, not the population of the county in which the municipality lies.
Id. at 385 (emphasis added). The Enabling Act, of course, divides Illinois’
1312 municipalities into two groups with absolutely no consideration of their
population, urbanization, density, or traffic flow, and it uses a classification
that will never change, regardless of how the municipalities themselves may
change. It defines not a single factor that could justify why red light cameras
are allowable in one community, but not another. Nor can any municipality
outside of the classification ever “grow its way into” the classification or
otherwise achieve inclusion based on changed circumstances.
33
This Court also struck down a similar, two-tiered law in In re Pet. of
Vill. of Vernon Hills, 168 Ill. 2d 117 (1995), which gave only the
municipalities in certain, population-defined counties, special powers
regarding fire protection districts. Once again, this Court clarified that
“there is no relationship whatsoever between county population and the need
for municipalities to consolidate fire protection districts.” 168 Ill. 2d at 129
(emphasis added).
2. The Enabling Act’s Two-Tiered “Classification” Leads to Patently Arbitrary Results at the Municipal Level
It is well established that a law is not “special” or “local” merely
because it operates only in certain parts of the state, as long as the conditions
necessary for the law’s application exist only in those areas. But when a law
treats similarly situated objects differently, it cannot be said to be general.
Here, when the effect of the Enabling Act is considered at the municipal level
the irrationality of this “legislative classification” becomes obvious.
Plaintiffs have the burden of establishing the unconstitutional effect of
a classification assailed as local or special, In re Pet. of Vill. of Vernon Hills,
168 Ill. 2d at 123, but the Circuit Court here denied plaintiffs even an
evidentiary hearing, and the City resisted any efforts to create a fuller record
(Tr 25-27, R 28-30). However, the record here still contains sufficient facts to
demonstrate the arbitrariness of the eight-county limitation in the Enabling
Act: it treats municipalities that are as different as can be imagined with
34
respect to any traffic-related concern the same, yet fails to treat similarly
situated municipalities alike.
Both the Circuit Court and the Appellate Court below failed to
consider how the eight-county limitation applied at the municipal level. The
Circuit Court accepted Chicago’s suggestion that “traffic volume due to
county population and proximity to Chicago and St. Louis” provided the
justification for the designation—something never mentioned in the
legislative history. But even this rationale, tailored (albeit inaccurately) to
survive the first prong of the test, cannot possibly survive the second. This is
so because there is a fundamental mismatch between the legislative
distinction and the objects upon which the law operates: the classification is
framed in terms of counties, but it actually operates—and operates without
question as to defendant Chicago—only to distinguish municipalities. There
is simply no rational basis to distinguish similar municipalities upon the
basis of the county in which they are located, and not upon any factor that
could actually distinguish them.
Thus, Symington (pop. 87), a small rural village, is permitted to install
red light cameras, because it is in Will County. But because the Enabling
Act’s designation does not distinguish on the basis of municipal population,
congestion, traffic patterns, or vehicle accidents, cities like Springfield and
Peoria, pedestrian-dense college towns like Champaign-Urbana and
Bloomington, and rapidly growing suburbs like Oswego, may not enjoy the
35
financial and claimed safety benefits of red light cameras because they are in
the “wrong” counties.
Even assuming that, as the Circuit Court supposed, proximity to a big
city matters, Plaintiffs argued and could easily prove (if given the chance)
that there are a number of larger municipalities less than an hour’s drive
from Chicago (like Oswego, supra, or Kankakee, on Interstate 57, pop.
27,537) that are not within the eight-county delineation, whereas smaller
rural towns almost 70 miles from Chicago and nowhere near a commuter
route to the City (Harvard, pop. 9,957) are within it. A municipality may be
45 miles from downtown Chicago and outside the delineation, or 75 miles
from City Hall but in the favored (or disfavored, depending on one’s
perspective) group.
Even if the legislature is allowed to speculate that traffic congestion is
worse in St. Clair County than in Winnebago County (which it is not) that has
nothing to do with whether red light violations are a bigger problem in the
City of Rockford (pop. 152,871, in Winnebago County) where red light
cameras are prohibited, than in the Village of Lenzburg (pop. 521, in St. Clair
County), where they are allowed—but which has no traffic signals. (A11-12)
Chicago, of course, would prefer that this Court view the effect of this
law only at the county level. But Chicago’s program does not operate under
the (ostensible) authority conferred at the county level and, even at that
level, the Act still would not pass muster. Winnebago County, not on the
36
eight-county list, has a greater population and population density than either
Madison or St. Clair County and has a 50% higher level of vehicle congestion
than St. Clair County (Tr. 30, R33), which is on the list. (A12-14) Winnebago
is also home to Rockford, the third largest city in Illinois, which is at least
three times larger than any municipality in Madison or St. Clair Counties.
There is no rational difference of traffic-related situation between Winnebago
County and the eight counties on the list that justifies their disparate
treatment in the Enabling Act.
Chicago and the courts below were content to try to rationalize the
Enabling Act’s classification after the fact, yet disregarding the well-pleaded
facts indicating that the “classification” at issue here was made to secure
passage of an otherwise politically unpopular bill. Only through strained
(and ultimately inaccurate) contortions can some other justification be
conceived, yet even then, the Act effectively draws its classification at random
– especially as to municipalities. A “classification” that operates in a “random
fashion” is unconstitutional. Christen v. Cnty. of Winnebago, 34 Ill. 2d 617,
617–20, 623 (1966) (striking down, under the 1870 Constitution, a
population-based classification that resulted in a courthouse construction bill
that only applied in 6 of the 102 Illinois counties).
C. The Intent of the Drafters of the 1970 Constitution Was to Ban Local Legislation, Especially Where It Was Made Local Only to Secure the Votes for Passage
The rules of constitutional interpretation are generally the same as
those of statutory construction: to determine the intent of the drafters and, in
37
the case of a constitution, those who ratified it. People v. Fitzpatrick, 2013 IL
113449 ¶23. It is uncontroverted in this case that the intent of the drafters of
Article 13 was to ban precisely the kind of local legislation at issue: an act
that would not have passed the legislature without the limitation ensuring
that the law would not apply to the constituents of many who voted for it.
1. The Historical Problems of Local and Special Legislation and the Attempts of Two Constitutions to Manage Them
The drafters of the Article IV, Section 13 of the 1970 Constitution
intended for the courts to construe the prohibition on local legislation strictly
as written and to construe the exception for laws that could not be made
general narrowly in order to achieve the result of reducing, or eliminating
altogether, the problems with special and local legislation that had led to the
adoption of the 1970 Constitution in the first place. The current ban on local
and special laws extends, but is grounded in the history of, the ban contained
in the Constitution of 1870.
In the mid-19th century, the Illinois General Assembly regularly
indulged in local and special legislation, or “private bills.” This caused a
number of problems that interfered with effective state government. Robert
M. Ireland, The Problem of Local, Private, and Special Legislation in the
Nineteenth-Century United States, 46 AM. J. LEGAL HIST. 271, 271 (2004)
(hereinafter “Ireland”). The tendency of state legislators to use local or special
laws to secure the favor of local voters, or bestow particular benefits on
constituents, created several problems. First, the sheer volume of such
38
legislation hindered the ability of legislatures to devote appropriate time and
resources to serious, statewide problems. Id. at 272, Braden & Cohn at 207
(“[I]f it is permitted, an inordinate amount of time is taken up with local and
special legislation.”). To allow local laws is to create the opportunity for
legislators effectively to “logroll” bad bills into law. Id. at 273. The drafters
recognized that when local laws are permitted, proponents of such a bills can
convince fellow legislators (whose districts will not be affected by the law) to
vote for their bills as matter of legislative “courtesy,” knowing that when the
time comes, they will in return find support for their own local and special
bills, no matter how bad or unpopular. Id. at 273–74, Braden & Cohn at 207
(“legislators are normally interested in their own private bills, and passage is
relatively easy”). The undisputed facts here support the strong inference that
this is just how the Enabling Act became law.
Illinois’ Constitutional Convention of 1870 was called largely due to a
perceived need to eliminate local and special legislation, Ireland, supra, at
295, and the document it created included such a ban, see ILL. CONST. OF
1870, art. IV, § 22 (prohibiting “local or special laws”) (“Section 22”). A
hundred years of judicial challenges to laws based on Section 22 followed.
Braden & Cohn, supra, at 225. Several elements of the 1870 Constitution
shaped the marked judicial deference to local and special laws seen in the
cases of the time. Most importantly, Section 22 made no provision for judicial
review. The wording of Section 22, and its placement in the legislative article,
39
strongly suggested that the proscription on local and special legislation was
an admonition to the legislature, not an invitation to the courts. Id. at 222
(courts “consistently” stated that Section 22 “is addressed to the legislature
and not to the courts,” such that the courts considered passage of “a local or
special law not otherwise prohibited a conclusive and unreviewable finding
by the legislature that a general law cannot be made applicable”). Courts
could and did sometimes strike down such laws, but judicial uncertainty as to
the drafters’ intent was reflected in case law prior to 1970.
Second, the 1870 Constitution contained no discrete equal protection
guarantee. Litigants challenging invidious legislative classifications under
the 1870 Constitution often couched their claims as local or special legislation
challenges, even where the challenges would now be understood to raise
concerns of equal protection or due process. Braden & Cohn, supra, at 218
(“courts “use[d] ‘special legislation’ as a way to get at general laws that, in the
eyes of the court, violate concepts of due process and equal protection. The
same judicial manipulation of the concept of ‘local legislation’ has been
indulged in.”) The Illinois courts adopted the deferential standard of review
being developed in the federal courts under general due process and equal
protection analysis. Id. at 214, 221.
Finally, home rule did not exist in 1870. Because even large
municipalities had limited legislative powers, courts indulged the state
legislature with more deference before the 1970 Constitution than is now
40
needed, allowing legislators flexibility to craft appropriate laws for their
municipalities.
In the lead-up to the 1970 Constitution, Braden & Cohn recommended
that in order to fully eliminate local and special legislation, the new Illinois
Constitution would need to contain four features: (1) a provision expanding
the powers of local governments; (2) discrete due process and equal protection
guarantees; (3) replacement of the Section 22 “laundry list” of banned
subjects with a clear, general prohibition; and (4) a clear statement of judicial
review to enforce the ban. Braden & Cohn, supra, at 224–26.12
Even though the 1970 Constitution contained all the elements Braden
and Cohn believed necessary to eliminate special and local legislation, they
were all too aware that a century’s worth of deferential court cases might
obscure the intent of Section 13:
The cautious solution is a provision like that of the Model quoted above, including the words of subjecting applicability of general laws to judicial determination. There is, of course, no assurance that the courts would not gallop through such a hole, dragging the old pseudo-special legislation rules with them. (One can rest assured that litigants would try to get the courts to do just that.) But if the problem of local and special legislation is handled in a comprehensive fashion as suggested here, with a well-
12Braden & Cohn may be considered the principal drafters or framers of Section 13; the wording they recommended for the section (that of the Sixth Model State Constitution), is what the delegates adopted. Compare Braden & Cohn, at 224 (proposing Article IV, Section 4.11 of the Model State Constitution, which states “[t]he legislature shall pass no special or local act when a general act is or can be made applicable, [which] shall be a matter for judicial interpretation”) with Section 13.
41
documented explanation of the four interrelated steps . . . the courts might go along.13
Id. at 226 (emphasis added). Chicago has not disputed that the drafters of the
1970 Constitution intended that this Court, presented with a local law that
could have been made general, would construe Section 13 as written and
strike down the Enabling Act.
2. The Intent of Both the 1870 and 1970 Constitutions Was to Ban “True” Local Legislation Like the Enabling Act
Even under the 1870 Constitution, most problems were created by
“local legislation in artificial classification disguises,” Braden & Cohn at 226.
The drafters recognized that a true “local law,” which merely named the
geographic subdivisions where it applied, was almost never permissible; such
laws were so rare, and so clearly unconstitutional, that even Article 22 barred
them:
Normally, in the law as elsewhere, the obvious violation of a rule not only creates no problems, it rarely occurs. This is true of local and special legislation. An obvious example of local legislation would be a statute proposing to permit the city of Onetown to have five dog-catchers, notwithstanding a general law that limited all cities to four dog-catchers.
13 In Bridgewater, this Court concluded only that the 1970 constitution “requires no change in our definition of when a law is ‘general and uniform,’ ‘special,’ or ‘local.’” 51 Ill. 2d at 110. More than a decade later, this Court, in In re Belmont, opined that Bridgewater required much more: “an application of those well-settled equal protection principles developed prior to the 1970 constitution.” 111 Ill. 2d 379-81 (citing a dozen cases decided between 1893 and 1966 under the former Article 22)—just what the drafters sought to avoid.
42
Id. at 207. Echoing Professor Kales’ analysis14 of the cases under Article 22,
Braden & Cohn identified the related principle that, in dealing with statutes
that have a local application, “a court should demand that the legislature so
draft its statutes that the rationality of the classification is explicit.” Braden
& Cohn at 212. Unfortunately, truly local laws, like the Enabling Act, do not
even contain any real “classification” because “[a]cts relating to local political
subdivisions by name are a form of identification and not classification.”
Singer, Norman J. & Singer, Shamie J.D., 2 SUTHERLAND STATUTES AND
STATUTORY CONSTRUCTION § 40:8 (7th ed.) (West 2011) (emphasis added).
Such laws defy the ability of the court to identify, much less assess, the basis
for the classification, and should not be permitted.
3. This Court Should Not Extend Cutinello, a Decision Which Has Confused Analysis of True Local Legislation
In Cutinello v. Whitley, 161 Ill. 2d 409 (1994) this Court upheld a
facially local law that created a new county fuel tax, but only in three named
counties. Below, Chicago suggested that this Court has regularly upholds
true “local” laws, but, in fact, Cutinello stands alone. Plaintiffs submit that
the Cutinello case has created substantial confusion regarding the
applicability of Section 13 to true local legislation, and should be clarified at a
minimum, or overruled. Unlike the statute at issue here, Cutinello involved
only a one-tier classification, where the statute operated at the county level
14 Kales, “Special Legislation as Defined in the Illinois Cases” 1 ILL L. REV 63 (1906).
43
and classified its objects by naming the relevant counties—a distinction this
Court has made before:
Cutinello, Nevitt, and Bilyk are therefore unlike the present case. Here, as in Belmont, there is no relationship whatsoever between county population and the need for municipalities to consolidate fire protection districts. There also is no basis on which to distinguish Lake County from any other county for purposes of section 14.14.
In re Pet. of Vill. of Vernon Hills, 168 Ill. 2d at 129 (emphasis in original).
Further, the dissent in Cutinello succinctly summed up the problem with the
statute there: “The act merely names, without any qualifying characteristics,
the three counties included within its scope.” 161 Ill. 2d at 427-48 (Freeman,
J., dissenting).
Because of the significant differences between Cutinello and this case,
which involves a novel, two-tiered statute containing no true classification,
what Chicago is really asking this Court to do is to extend Cutinello well
beyond the limits of that case and apply it to an entirely different type of
classification scheme, without the rationale or the facts to support such a
broadened application. But Cutinello, even limited to its own particular
facts, is already at the far reaches of what might be considered constitutional
under the “Local Law” provision and this Court has already declined to
extend it.
Indeed, Cutinello’s effects already threaten to proliferate. The bill-
drafting manual for the Illinois General Assembly touts the opinion as it
advises drafters that they may now, effectively, disregard the ban on local
44
legislation, and eschew the hard work of valid legislative classification
entirely:
An Illinois Supreme Court opinion, however, suggests that it might be better just to name McHenry County and forget about trying to define its population, particularly when population may not be a rational and fair basis for making the distinction. Cutinello v. Whitley, 161 Ill.2d 409 (1994).
Illinois Bill Drafting Manual, Sec 20-15 (Legislative Reference Bureau,
December 2012). Because Cutinello upheld the constitutionality of a facially
local law, and now the Appellate Court has upheld a facially local law that
combines the county-naming feature of Cutinello and extends it to
municipalities in named counties, it appears that the constitutional ban on
local legislation is no more. The Court should rectify this.
4. Presuming the Unconstitutionality of Facially Local Laws Would Better Effectuate the Drafters’ Intent
This Court has recently clarified the rules that apply to the analysis of
special legislation. Peoria School District 150, ¶¶ 46-54. As discussed above,
the analysis applied to special laws containing date restrictions that
effectively close the class of objects on which a statute operates should apply
equally to facially local laws, which also define a closed class. Plaintiffs
submit that the best way to enforce the principles in Peoria School Dist. 150,
to effect the drafters’ intent, and to clarify the uncertainty that Cutinello
creates regarding true or facially local statutes, is to reverse the presumption
of constitutionality for such laws. As the Missouri Supreme Court has
explained:
45
If the statute's classification contains close-ended characteristics, however, the statute is facially special. Closed-ended classifications are based upon historical facts, geography, or constitutional status, which focus on immutable characteristics. Facially special laws are presumed unconstitutional. The party defending a facially special law must demonstrate a substantial justification for the closed-ended classification. Otherwise, the law will be struck down as unconstitutional.
Board of Ed. of City of St. Louis v. Missouri State Board of Ed., 271 S.W.3d 1
(Mo. 2008) (internal citations omitted).
III. EVEN IF THE ENABLING ACT IS VALID, IT DID NOT AUTHORIZE
CHICAGO’S VOID 2003 ORDINANCE
As discussed above, the Enabling Act is unconstitutional. But even if
this Court does not declare it so, it should still strike down Chicago’s
Ordinance and the Program it created, because the City has never reenacted
its void Ordinance. An ordinance adopted beyond a municipality’s power “is
void and, in legal contemplation, as inoperative as though it had never been
passed.” Dean Milk Co. v. City of Aurora, 404 Ill. 331, 338 (1949). See also
Two Hundred Nine Lake Shore Drive Bldg. Corp. v. City of Chicago, 3 Ill.
App. 3d 46, 51 (1971) (ordinance that is void as unauthorized has “no legal
existence whatsoever”). The void ab initio doctrine is premised on the notion
that an act void when enacted
is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
People v. Blair, 2013 IL 114122, ¶28 (2013) (quoting Norton v. Shelby County,
118 U.S. 425, 442 (1886)); see also People v. Burney, 2011 Ill. App. 4th
46
100343, ¶42 (2011) (fines or fees imposed without proper statutory authority
are void ab initio). A legislative enactment that is void ab initio may be
challenged at any time. People v. Wright, 194 Ill. 2d 1, 23-4 (2000).
A. The Enabling Act Applies Prospectively and Cannot Validate a Void Ordinance
Even assuming arguendo that the Enabling Act is not an
unconstitutional local law, it did not take effect for nearly three years after
Chicago enacted its Ordinance. The plain language of the Enabling Act
reveals no intent to operate retroactively (“[t]his Act takes effect upon
becoming law”) (A49) or to validate any preexisting ordinances. The Statute
on Statutes accordingly directs that the Enabling Act operate in futuro only.
5 ILCS 70/4; Caveny v. Bower, 207 Ill. 2d 82, 92 (2003). It is well settled that
“a municipal ordinance, invalid because the municipality lacked power to
adopt it, is not validated only by the subsequent enactment of an enabling
statute.” People ex rel. Larson v. Thompson, 377 Ill. 104, 109 (1941). Even a
true “curative act,” passed with the express intention of retroactively
remedying an unauthorized exercise of power, could not revive the City’s
Ordinance. Johnson v. Edgar, 176 Ill. 2d 499, 522-23 (1997); People ex rel.
Shore v. Helmer, 410 Ill. 420 (1951). The General Assembly “cannot by
curative act render a void proceeding valid[] . . . [or] operate to supply a
power which was lacking in the first instance”; it matters not whether the
lack of authority is “statutory or constitutional” because “subsequent
enabling legislation [cannot] . . . bring vitality to [the] otherwise barren
47
attempt of the municipality to regulate the social evil.” Two Hundred Nine
Lake Shore, 3 Ill. App. 3d at 51 (quoting, in part, People ex rel. Rhodes v.
Miller, 392 Ill. 445, 449-50 (1946).15 Simply put, the 2006 Enabling Act
could not “give validity to the exercise of a power where such assumed power
did not exist at the time it was purported to have been exercised.” In re Cnty.
Collector of Kane Cnty., 172 Ill. App. 3d 897, 905 (2d Dist. 1988). Chicago
lacked power to adopt the Ordinance in 2003 and a 2006 enabling statute
cannot “confer posthumously the power.” Larson, 377 Ill. at 114. The
Enabling Act only gave Chicago the power in 2006 to “adopt an ordinance”
(A32-33) but Chicago has not yet done that.
Vill. of River Forest v. Midwest Bank & Trust Co., 12 Ill. App. 3d 136,
140 (1st Dist. 1973), is on point. River Forest adopted a 1959 ordinance
prohibiting a group of unrelated persons from occupying a single-family
home. The court subsequently ruled that the village lacked the legal
authority to enact zoning ordinances considering familial connections in
1959, but gained that power when the General Assembly passed an enabling
act in 1967. River Forest, however, never re-enacted the ordinance after the
passage of this enabling act, nor did it adopt a new ordinance like it, so its
ordinance was void. Id. The court stated that “legislative validations are
15 In reality, Chicago’s lack of authority to legislate alternative traffic enforcement schemes has both a statutory and a constitutional dimension, as authority for statutes that restrict or limit the concurrent exercise of home rule powers is itself found in the Constitution, Article VII, Section 6.
48
limited by the rule that validity cannot be given to assumed municipal power
which did not exist when it was exercised.” Id. at 140. As in River Forest,
the 2006 Enabling Act did not validate Chicago’s void 2003 Ordinance, either
retrospectively or prospectively. Chicago likewise failed to re-enact or re-
adopt its Ordinance following passage of the Enabling Act; if its Ordinance
was void and invalid before May 22, 2006, it remains so today.
B. The Appellate Court’s Forfeiture Finding was in Error
The Circuit Court erroneously concluded that once the Enabling Act
took effect in 2006, Chicago’s program was immediately and “indisputably
authorized.” Plaintiffs’ attempts to dispute this—by explaining that Chicago
would still have needed to enact or re-enact a compliant ordinance after the
effective date of the Enabling Act—were rejected by the Appellate Court
below, which considered the argument waived. But this Court, in its
discretion, should consider this issue.
First, this case came before the Circuit Court on a 2-615 Motion.
Chicago’s moving papers never claimed that the Enabling Act retroactively
authorized its ordinance, and so Plaintiffs’ response was silent on the issue.
The Circuit Court’s erroneous conclusion was based on an argument raised
for the first time in Chicago’s reply brief, which stated that “Once plaintiffs’
constitutional challenges to the Red Light statute are rejected, it follows that
the Red Light Statute has provided the City with authority to utilize its own
49
red light ordinance since May 22, 2006” (emphasis added).16 It is of course
improper to raise new arguments in a reply brief. See 210 Ill. 2d Rule 341
(h)(9); Pajic v. Old Republic Insurance Co., 394 Ill. App. 3d 1041, 1051 (1st
Dist. 2009). A Motion to Dismiss does not lie as long as a good cause of action
is stated, even if that cause of action is not the one intended to be asserted by
the plaintiff. Ill. Graphics Co. v Nickum, 159 Ill. 2d 469 (1994). The
Appellate Court should not have considered as forfeited (or waived) any
argument that could have been cured by an amended pleading. Gallagher
Corp. v. Russ, 309 Ill. App. 3d 192, 197 (1st Dist. 1999).
Second, even if Plaintiffs did forfeit any part of this argument, the
Court should still consider it, as the issues here are purely legal, and the City
was not deprived of a chance to respond and was not otherwise prejudiced. A
court may “overlook forfeiture” (which is of course not a limitation on the
court) in light of the “duty to maintain a sound body of precedent.” O’Casek v.
Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 437 (2008)
C. The City Has Never Reenacted an Ordinance, So Its Program Remains Unauthorized
The routine and relatively minor amendments to Chicago’s Ordinance
over the years do not save its void program. Simply amending a void statute 16 To be sure, Chicago has consistently argued that no plaintiff had “standing” to challenge the Ordinance as all of Plaintiffs’ Tickets post-dated the Enabling Act. In the face of Plaintiffs’ vigorous dispute that this presented an issue of “standing” (or that it was an accurate statement of the law in any event), the Circuit Court accepted Chicago’s argument. The Appellate Court reversed in Plaintiffs’ favor on this point. (A56)
50
is no substitute for reenacting it. Both the Statute on Statutes, 5 ILCS 70/2,
and several decisions of this Court confirm that amendments to a void law do
not reenact it. U.S. Bank Nat. Ass’n v. Clark, 216 Ill. 2d 334, 354 (2005). In
Village of Park Forest v. Wojciechowski, 29 Ill. 2d 435, 438 (1963), this Court
held that when an ordinance is amended,
such portions of the old ordinance as are repeated or retained, either literally or substantially, are to be regarded as a continuation of the old ordinance and not as the enactment of a new ordinance on the subject or as a repeal of the former ordinance.
(emphasis added); see also Dean Milk, 404 Ill. at 337-38 (1949) (ordinance
purporting to amend a void ordinance “is likewise void and of no effect.”).
Amending an ordinance that is void ab initio is akin to transplanting organs
into a corpse: the new parts do not bring a stillborn ordinance to life. Chicago
indisputably knows how to repeal and reenact chapters of its municipal code,
but evidently chooses not to do so here.
CONCLUSION
Plaintiffs respectfully request that this Court reverse the judgments of
the appellate and circuit courts and remand this matter to the circuit court
for further proceedings.
Dated: October 30, 2013
51
Respectfully Submitted,
______________________________ ______________________________
Attorneys for Plaintiffs-Appellants Derek Y. Brandt Michael T. Reagan Patrick J. Keating LAW OFFICES OF SIMMONS BROWDER GIANARIS MICHAEL T. REAGAN ANGELIDES & BARNERD LLC 633 LaSalle Street Suite 409 230 W. Monroe Street Ottawa, IL 61350 Chicago, IL 60606 (815) 434-1400 (312) 759-7500 Andrea Bierstein HANLY CONROY BIERSTEIN SHERIDAN FISHER HAYES LLP 112 Madison Avenue New York, NY 10016 (212) 784-6400
52
CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 341(a)
and (b). The length of this brief, excluding the pages containing the Rule
341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule
341(c) certificate of compliance, the certificate of service, and those matters to
be appended to the brief under Rule 342(a), is 50 pages.
___________________________________ Patrick J. Keating
Recommended